Ponder v. County Of Winnebago et al
MEMORANDUM Opinion and Order: Defendant's motion for summary judgment 97 is denied. The parties are ordered to consult with each other and file notice with the Court by November 21, 2023, as to whether they would like to schedule a settlement conference with Magistrate Judge Jensen or whether they would like to prepare a final pretrial order. See attached order for details. Signed by the Honorable Iain D. Johnston on 11/13/2023: (yxp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
Kimberly A. Ponder,
Case No. 3:20-cv-50041
Honorable Iain D. Johnston
County of Winnebago,
MEMORANDUM OPINION AND ORDER
If Barney Fife were a human resources director, he would preach that alleged
employment issues should be nipped in the bud. When employers—particularly
governmental bodies—fail to timely act on an employee’s alleged performance
deficiencies, they leave themselves vulnerable to claims of retaliation when they
finally get around to addressing the alleged deficiencies. So, when parties present
evidence of competing reasonable theories as to why an employee was terminated—
whether for performance issues or retaliation—the consequence is a trial, usually
before a jury. What’s more, the whole process gets really ugly when the issues relate
to local political infighting.
Plaintiff Kimberly A. Ponder brings this case against Defendant County of
Winnebago (“the County”). The County now moves for summary judgment. For the
following reasons, the Court denies summary judgment.
A. Summary Judgment
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The Court must construe the “evidence and all
reasonable inferences in favor of the party against whom the motion under
consideration is made.” Rickher v. Home Depot, Inc., 535 F.3d 661, 664 (7th Cir.
2008). A genuine dispute of material fact exists if a reasonable jury could return a
verdict for the nonmovant; it does not require that the dispute be resolved
conclusively in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-49 (1986). However, “[s]peculation is insufficient to withstand summary
judgment.” Ortiz v. John O. Butler Co., 94 F.3d 1121, 1127 (7th Cir. 1996). Indeed,
“the nonmoving party ‘must do more than simply show there is some metaphysical
doubt as to the material facts.’ ” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)).
B. Local Rule 56.1
“On summary judgment, the Court limits its analysis of the facts to the
evidence that is presented in the parties’ Local Rule 56.1 statements.” Kirsch v.
Brightstar Corp., 78 F. Supp. 3d 676, 697 (N.D. Ill. 2015). The statements serve a
valuable purpose: they help the Court in “organizing the evidence and identifying
disputed facts.” Fed. Trade Comm’n v. Bay Area Bus. Council, Inc., 423 F.3d 627,
633 (7th Cir. 2005). “District courts are ‘entitled to expect strict compliance’ with
Rule 56.1, and do not abuse their discretion when they opt to disregard facts
presented in a manner that does not follow the rule’s instructions.” Gbur v. City of
Harvey, 835 F. Supp. 2d 600, 606-07 (N.D. Ill. 2011); see also Waldridge v. Am.
Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994).
Local Rule 56.1 requires a party seeking summary judgment to file an
accompanying statement of facts, with numbered paragraphs and citations to the
record supporting those facts. See LR 56.1(d). To assert new facts, the party
opposing summary judgment must file its own statement of facts. LR 56.1(b)(3).
“Factual allegations not properly supported by citation to the record are nullities.”
Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000). In responding to these
asserted facts, if a party wishes to dispute a fact, it must “cite specific evidentiary
material that controverts the fact and must concisely explain how the cited material
controverts the asserted fact.” LR 56.1(e)(3). A response “may not set forth any new
facts, meaning facts that are not fairly responsive to the asserted fact to which the
response is made.” LR 56.1(e)(2). Neither the factual assertions nor the responses
should contain legal argument beyond objections in responses. LR 56.1(d)(4), (e)(2).
As a preliminary note, the factual record in this case contains many disputes:
the parties often agree that a declarant’s testimony has been accurately
summarized, but they disagree that the testimony itself is accurate. Both parties
generally followed the requirements laid out by Local Rule 56.1—the County
submitted its statement of facts, Dkt. 99 (“DSOF”); Ms. Ponder both responded to
the County’s statement of facts, Dkt. 107 (“PRDSOF”), and submitted her own
statement of additional facts, Dkt. 108 (“PSOF”); and the County submitted its
response to Ms. Ponder’s statement of additional facts, Dkt. 115 (“DRPSOF”)—but
there are some issues. For example, some of the factual assertions and responses
contain legal arguments, 1 and some responses set forth new facts that aren’t
responsive to the asserted facts. 2 Under Local Rule 56.1, the Court ignores any
noncompliant portions of the statements of facts. See LR 56.1(d)(4), (e)(2).
Ms. Ponder’s statement of additional facts relies heavily on her own affidavit,
which the County argues is a “sham.” Dkt. 114 at 2. The sham-affidavit rule is a
narrow rule that “prohibits a party from submitting an affidavit that contradicts the
party’s prior deposition or other sworn testimony.” James v. Hale, 959 F.3d 307, 316
(7th Cir. 2020). However, a “self-serving” affidavit should not be excluded just
because of its self-serving nature. Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir.
2013) (“As we have repeatedly emphasized over the past decade, the term ‘selfserving’ must not be used to denigrate perfectly admissible evidence through which
a party tries to present its side of the story at summary judgment.”); see also Buie v.
Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir. 2004). In using Ms. Ponder’s
affidavit, the Court ignores only statements that directly contradict her previous
sworn testimony. When purportedly contradictory statements can be reconciled,
E.g., DRPSOF 24 (“Nevertheless, Plaintiff was an at-will employee, and there was no requirement
that Paschal or any other supervisor (or the County Board) discuss this or any other performancerelated issue with Plaintiff was a prerequisite to recommending or imposing discipline or
termination.”); PSOF 13 (“Plaintiff responds that this is misleading and disingenuous . . . .”).
2 E.g., PRDSOF 37 (responding to the asserted fact that the recommendation memo said Ms. Ponder
failed to update some policies as part of her duties with the fact that Mr. Haney recalled no
discussion of this as a basis for termination); DRPSOF 15 (responding to the asserted fact that Ms.
Paschal and Mr. Haney never discussed delays in implementing an employee training program as a
basis for termination with the fact that Mr. Haney believed FMLA had no bearing on Ms. Ponder’s
such as a plausible lapse in memory during deposition, the Court does not apply the
sham-affidavit rule. See James, 959 F.3d at 317.
Here is a summary of the facts. Ms. Ponder began working in the Winnebago
County Human Resources (“HR”) Department as an HR Generalist in September
2001. DSOF 1, 10; PSOF 1. She was promoted to HR Director in January 2012.
DSOF 11; PSOF 1. Sometime in 2017, Ms. Ponder’s direct supervisor resigned, and
she began to report directly to Winnebago County Administrator Amanda
Haymaker and Winnebago County Board Chair Frank Haney. DSOF 12; PSOF 2. In
November 2017, Carla Paschal (then head of the Finance Department) replaced Ms.
Haymaker; after that, Ms. Paschal and Mr. Haney were Ms. Ponder’s direct
supervisors. DSOF 13, 32; PSOF 2. Ms. Paschal didn’t have the authority to
terminate Ms. Ponder, but instead could issue recommendations to the County
Board Chair (Mr. Haney) or the County Board. See DSOF 13; PSOF 3.
Ms. Ponder applied for FMLA leave to care for her husband from March 14,
2019, to June 6, 2019, which the County approved. DSOF 14; PSOF 39. Ms. Ponder
voluntarily decided to return to work early on May 6, 2019. DSOF 14; PSOF 39. Ms.
Ponder later claimed that she worked remotely during this leave of absence. See
DSOF 24; PSOF 40.
On May 20, 2019, the “Baker Tilly report” was released to the County Board.
DSOF 45. The Baker Tilly report was an “Operational and Organizational
Assessment” of the County’s HR and Finance Departments completed by Baker
Tilly Vichow Krause, LLP. DSOF 43. The assessment was completed in 2018, with
the findings provided to Ms. Paschal and Mr. Haney on August 3, 2018, nearly a
year before the report was provided to the Board. DSOF 43-44. After the report was
released, Ms. Paschal and Ms. Ponder met to discuss the findings. DSOF 45; Dkt.
99-2 at 57:1-3. The report was critical of the HR department, see DSOF 44, but the
parties dispute the nature of the conversations between Ms. Paschal and Mr. Haney
on how to move forward with those critical findings. See DSOF 46; PRDSOF 46.
On July 5, 2019, the County approved Ms. Ponder’s request for intermittent
FMLA leave to care for her husband from June 6 to August 29. DSOF 16.
Less than a week later, on July 10, 2019, Ms. Paschal issued a memorandum
recommending Ms. Ponder’s termination (the “recommendation memo”) to the
County Board. DSOF 27; PSOF 3. In this memo, Ms. Paschal listed ten ways in
which Ms. Ponder had allegedly failed to satisfactorily perform her duties, violated
County policies, and put the County at risk of civil liability. See DSOF 28. These
items included incidents spanning back to 2017 and concerns surfaced by the Baker
Tilly report. See DSOF 28, 49, 53. The parties dispute the allegations in the
recommendation memo. See PSOF 4-30; DRPSOF 4-30.
From July 18, 2019, to August 15, 2019, Ms. Ponder went on FMLA leave for
her own medical illness. DSOF 17. On July 22, the County approved the request for
this FMLA leave. Id.
Ms. Ponder’s next request for a leave of absence was not an FMLA request.
DSOF 19. On August 12, 2019, Ms. Ponder requested a discretionary leave of
absence from August 16 to November 15. Id. Ms. Paschal denied the request on
August 15. DSOF 23. Five days later, on August 20, Ms. Ponder sent a letter to Ms.
Paschal; in this letter, Ms. Ponder claimed that her FMLA leave from March to May
2019 should be redesignated to not count against her FMLA leave entitlement
because she had worked remotely during that period. DSOF 24; PSOF 40.
Just two weeks later, the County Board voted to terminate Ms. Ponder on
August 22, 2019. DSOF 29. The decision was brought back to the Board for
reconsideration on September 19, 2019, during which the Board voted to uphold Ms.
Ponder’s termination. Id.
The only remaining claim before the Court is Ms. Ponder’s FMLA retaliation
claim. See Dkt. 93 at 1; Dkt. 111 at 15; Dkt. 114 at 1. Because of the analogous
language in other employment statutes, courts analyze FMLA retaliation claims in
the same way that they analyze retaliation claims under other employment
statutes, such as the Americans with Disabilities Act or Title VII of the Civil Rights
Act of 1964. Buie, 366 F.3d at 503; see also Trahanas v. Nw. Univ., 64 F.4th 842,
856 (7th Cir. 2023). A retaliation claim requires three elements: “(1) the employee
engaged in statutorily protected activity; (2) the employer subjected her to an
adverse action; and (3) the protected activity caused the adverse action.” Riley v.
City of Kokomo, 909 F.3d 182, 188 (7th Cir. 2018). 3
The County initially presents a burden-shifting framework that comes after satisfying the three
elements of a retaliation claim, see Dkt. 98 at 7, but neither party applies the framework after that,
see Dkt. 111 at 12; Dkt. 114 at 1. Burden-shifting frameworks can be a way of proving
discrimination, but there is no separate requirement. See Ortiz v. Werner Enters., Inc., 843 F.3d 760,
766 (7th Cir. 2016). Regardless, the analysis addressing Ms. Ponder’s argument that the County’s
reasons for her termination are pretextual also addresses the burden-shifting framework presented
In this case, the parties agree that Ms. Ponder engaged in statutorily
protected FMLA activity and that she was subjected to an adverse employment
action (termination). Dkt. 98 at 7; Dkt. 111 at 12. The only remaining question is
whether there is a causal connection between Ms. Ponder exercising her FMLA
rights and her termination. Dkt. 98 at 7; Dkt. 111 at 12.
“To succeed on a retaliation claim, the plaintiff does not need to prove that
retaliation was the only reason for her termination; she may establish an FMLA
retaliation claim by showing that the protected conduct was a substantial or
motivating factor in the employer’s decision.” Goelzer v. Sheboygan County, 604
F.3d 987, 995 (7th Cir. 2010) (internal quotations omitted) (quoting Lewis v. Sch.
Dist. #70, 523 F.3d 730, 741-42 (7th Cir. 2008)). 4 Evidence of a causal connection
can include “suspicious timing, ambiguous statements from which a retaliatory
intent can be drawn, evidence of similar employees being treated differently, or
evidence that the employer offered a pretextual reason for the termination” Pagel v.
Tin Inc., 695 F.3d 622, 631 (7th Cir. 2012); see also Gnutek v. Ill. Gaming Bd., 80
F.4th 820, 824 (7th Cir. 2023). Shifting and changing justifications for the
termination also evidence pretext. Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 738
by the County. See Coleman v. Donahoe, 667 F.3d 835, 858 (7th Cir. 2012) (“We have often noted that
‘the prima facie case and pretext analyses often overlap.’ ”).
4 Although the Supreme Court held in University of Texas Southwestern Medical Center v. Nassar,
570 U.S. 338 (2013), that Title VII retaliation claims require but-for causation, the Seventh Circuit
has not decided whether that also applies to FMLA retaliation claims. Malin v. Hospira, Inc., 762
F.3d 552, 562 n.3 (7th Cir. 2014). District courts within the Seventh Circuit have taken different
approaches. See Hall v. Bd. of Educ., No. 14-cv-3290, 2018 U.S. Dist. LEXIS 13991, at *21-22 (N.D.
Ill. Jan. 29, 2018) (collecting cases). However, the Seventh Circuit has continued to apply the
substantial-factor test in cases after Nassar, see, e.g., Anderson v. Nations Lending Corp., 27 F.4th
1300, 1307 (7th Cir. 2022), so this Court will apply the substantial-factor test in this case.
(7th Cir. 2013). In evaluating the evidence, the key question is whether a
reasonable jury could conclude that the protected activity caused the adverse action.
See Ortiz v. Werner Enters., Inc., 843 F.3d 760, 765 (7th Cir. 2016); Mourning v.
Ternes Packaging Ind., Inc., 868 F.3d 568, 571 (7th Cir. 2017) (applying Ortiz to an
The County emphasizes that Ms. Ponder has no knowledge of being
terminated for FMLA leave, see Dkt. 98 at 11; Dkt. 114 at 5, but that’s not the
question. The task before the Court is to consider the evidence as a whole and
determine whether a reasonable jury could infer whether Ms. Ponder’s termination
was motivated because she exercised her FMLA rights. See Ortiz, 834 F.3d at 765.
The undisputed facts in this case generally assert that someone testified to
something, but most of the underlying facts are disputed. Because of the disputed
nature of the record, the Court finds that answering the causation question requires
reconciling competing testimony. At the summary judgment stage, the Court should
not be determining credibility and weighing evidence; those functions belong to the
jury. Liberty Lobby, 477 U.S. at 255; Baines v. Walgreen Co., 863 F.3d 656, 665 (7th
Cir. 2017). 5
The parties’ arguments largely center around whether the County’s reasons
for terminating Ms. Ponder were pretextual, but there are also some ancillary
arguments about suspicious timing and other purported reasons for termination.
Viewing the evidence as a whole, the Court finds that there is a genuine dispute as
The Court could—and maybe should—end its analysis here. But for the benefit of a complete
record, the Court addresses the parties’ arguments in detail.
to whether Ms. Ponder exercising her FMLA rights was a substantial or motivating
factor in her termination and that, viewing the evidence in Ms. Ponder’s favor, a
reasonable jury could find that causal connection.
A. Suspicious Timing
Generally, suspicious timing alone or “mere temporal proximity” is not
enough to survive summary judgment. Riley, 909 F.3d at 188. This is particularly
true if “there are reasonable, non-suspicious explanations for the timing.” MilliganGrimstad v. Stanley, 877 F.3d 705, 711 (7th Cir. 2011). But if the time between a
protected activity and the adverse action is short enough, suspicious timing can be
enough to survive summary judgment. See, e.g., Loudermilk v. Best Pallet Co., 636
F.3d 312, 315 (7th Cir. 2011) (“The closer two events are, the more likely that the
first caused the second.”); King v. Preferred Tech. Grp., 166 F.3d 887, 893 (7th Cir.
1999) (finding that one day was “[s]uch a close proximity . . . sufficient to establish a
prima facie case of retaliation”).
The timing of the recommendation memo and the termination vote could
reasonably be seen as suspicious. Although the County correctly points out that the
recommendation memo, issued on July 10, 2019, came over two months after Ms.
Ponder returned to work on May 6, Dkt. 114 at 7, the recommendation memo came
five days after Ms. Ponder’s request for intermittent FMLA leave was approved on
July 5. As for the County Board’s termination vote on August 22, 2019, the County
notes that it was a month and a half after the recommendation memo, see Dkt. 114
at 7, but the vote was seven days after Ms. Ponder’s FMLA leave from July 18 to
August 15. The timing of the termination vote was also only two after Ms. Ponder’s
August 20 request to redesignate her March FMLA leave (following the denial of
her request for discretionary leave). With the termination vote, however, the County
implies that Board didn’t know of Ms. Ponder’s FMLA leave, see Dkt. 98 at 10, or
redesignation request, see DSOF 15. If the Board didn’t know, then the timing of the
termination vote cannot be used to infer retaliation. See Trahanas, 64 F.4th at 857.
As for the recommendation memo, the County does not argue that Ms.
Paschal was unaware of Ms. Ponder’s FMLA activity. The five days between the
intermittent leave request and the recommendation memo is closer to the short
spans of time that courts have found could lead to a reasonable inference of
causation than to the longer spans of time that were insufficient to create a triable
issue. Compare, e.g., King, 166 F.3d at 893 (one day), and McClendon v. Ind.
Sugars, 108 F.3d 789, 797 (7th Cir. 1997) (two to three days), with Cole v. Illinois,
562 F.3d 812, 816 (7th Cir. 2009) (two months). And in one (admittedly old) case,
the Seventh Circuit found one week to be short enough. See Holland v. Jefferson
Nat’l Life Ins., 883 F.2d 1307, 1315 (7th Cir. 1989). Five days is short enough to let
a jury decide whether an inference of causation is appropriate in this case. See
Loudermilk, 636 F.3d at 315.
But even longer spans of time, like the two months between Ms. Ponder
returning from her first FMLA leave to the time of the recommendation memo, see
Dkt. 98 at 9, can be relevant to the causation question. Although two months is not
short enough to independently infer causation, it can be combined with evidence
that the employer’s explanation for termination was pretextual. Riley, 909 F.3d at
188-89. Analyzing the temporal sequence alone, however, “is not a magic formula.”
Buie, 66 F.3d at 506 (quoting Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1034
(7th Cir. 1999)). Timing becomes another consideration in the question of pretext
and job performance discussed in the next section.
Ms. Ponder also includes the delayed release of the Baker Tilly report in her
arguments about suspicious timing—although the report was provided to Ms.
Paschal and Mr. Haney in August 2018, it wasn’t released until May 2019. DSOF
44-45. However, the release of the report on its own wasn’t an adverse employment
action, see Lewis v. City of Chicago, 496 F.3d 645, 653 (7th Cir. 2007), so the timing
of the report is more relevant to the next section.
B. Job Performance
The County maintains that Ms. Ponder was terminated because of her
substandard job performance. See, e.g., Dkt. 98 at 10; Dkt. 114 at 3, 10. When an
employer fires an employee for work-related reasons, a court’s job is to ensure that
the process was not discriminatory. Daugherty v. Wabash Ctr., Inc., 577 F.3d 747,
752 (7th Cir. 2009). The question is not how an employer should discipline its
employees; rather, the question is whether the employer was earnest in its workrelated explanation. Daugherty, 577 F.3d at 752. To survive summary judgment,
there must be an issue of material fact as to whether the employer’s proffered
reasons are pretextual. Argyropoulos v. City of Alton, 539 F.3d 724, 736 (7th Cir.
2008). A pretextual decision “involves more than just faulty reasoning or mistaken
judgment on the part of the employer; it is [a] lie, specifically a phony reason for
some action.” Harden v. Marion Cnty. Sheriff’s Dep’t, 799 F.3d 857, 864 (7th Cir.
2015) (alteration in original) (quoting Argyropoulos, 539 F.3d at 736). There must be
“ ‘evidence tending to prove that the employer’s proffered reasons are factually
baseless, were not the actual motivation for the discharge in question, or were
insufficient to motivate’ the termination.” Tibbs v. Admin. Off. of the Ill. Cts., 860
F.3d 502, 506 (7th Cir. 2017) (quoting Carter v. Chi. State Univ., 778 F.3d 651, 659
(7th Cir. 2015)).
For example, an “unusual deviation from standard procedures” can be
evidence of discrimination. Baines, 863 F.3d at 664. The County argues that this
deviation from standard procedure argument fails because Ms. Ponder does not
identify any similarly situated employees. See Dkt. 114 at 8-9. It cites Coleman v.
Donahoe, in which the Seventh Circuit was presented questions about how alike
comparators must be and whether such evidence can apply to determining pretext.
667 F.3d 835, 841 (7th Cir. 2012). The Seventh Circuit did not, however, state that a
comparator employee was a requirement to showing pretext. See id.; see also
Giacoletto v. Amax Zinc Co., 954 F.2d 424, 427 (7th Cir. 1992); Kalahar v. Priority,
Inc., No. 20-C-0055, 2021 U.S. Dist. LEXIS 20395, at *21-22 (E.D. Wis. Feb. 3,
2021). The Court sees evidence of a similarly situated employee as relevant to
determining what an employer’s standard practice might be, but the absence of
such evidence doesn’t necessarily nullify Ms. Ponder’s argument.
The parties offer little evidence about the County’s typical practice or process
for terminating an employee—only that Mr. Haney testified that Ms. Paschal
should have talked to Ms. Ponder about any performance issues or taken
disciplinary measures to give her the opportunity to improve. PSOF 35; Dkt. 111 at
14. Citing different parts of Ms. Ponder’s deposition testimony, the parties dispute
whether Ms. Paschal had the authority to discipline Ms. Ponder. See PSOF 35;
DRPSOF 35. Construing that evidence in Ms. Ponder’s favor, the Court considers
Mr. Haney’s testimony that under normal circumstances, Ms. Paschal would have
talked to Ms. Ponder about her performance issues. This would have been classic
progressive discipline, meaning that the frequency or severity of misconduct or
deficiencies results in more severe discipline. See Norfolk Shipbuilding & Drydock
Corp. v. Local No. 684 of the Int’l Bhd. of Boilermakers, 671 F.2d 797, 799 (4th Cir.
1982); Fuller v. McDonough, 84 F.4th 686, 690 (7th Cir. 2023). In examining
whether the allegations of poor job performance were pretextual, the Court finds it
relevant, but not dispositive, to consider whether Ms. Paschal discussed specific
performance concerns or issued discipline to give Ms. Ponder a chance to improve
before issuing the recommendation memo.
In addition, as noted above, when accompanied by evidence of a retaliatory
motive, suspicious timing can be probative. Coleman, 667 F.3d at 861; Riley, 909
F.3d at 188-89. Ms. Ponder argues that the timing is suspicious because Ms.
Paschal would have known about many of the alleged performance issues for at
least a year, but Ms. Paschal took no steps to terminate Ms. Ponder until after her
FMLA leave. See Dkt. 111 at 14. The County agrees that Ms. Paschal had concerns
about Ms. Ponder’s performance long before the FMLA leave but argues that this
shows that the reasons for termination were not pretextual. See Dkt. 114 at 6.
The Seventh Circuit has opined on both sides. In dictum, it has speculated
that a factfinder could use Ms. Ponder’s reasoning to infer retaliation. See Kohls v.
Beverly Enters. Wis., Inc., 259 F.3d 799, 806 (7th Cir. 2001) (“We can imagine
circumstances in which the timing of this decision could lead a fact finder to infer
that the employee would not have been fired absent her taking of leave (if, for
example, a supervisor who had been aware of problems with an employee did not
decide to fire the employee until she took leave, and the supervisor based the firing
on incidents of which the employer had already been aware).”). But the Seventh
Circuit has ruled the opposite way. For example, in Buie, it found that no
reasonable jury could infer that the employee was fired because of his disability or
because the announcement of his disability could result in taking FMLA leave. 366
F.3d at 507. It noted that the employee was warned nearly three months before
termination that he could be fired if he continued to have attendance problems and
found that the employee “had every reason to believe that he was on the edge of
termination” when he announced his disability. Id. Drawing from that example, in
looking at the evidence about how long Ms. Paschal observed the issues she found
with Ms. Ponder’s performance and whether Ms. Paschal communicated her
concerns, the Court considers it as evidence relevant to determining when Ms.
Paschal began to see those issues as bases for termination.
When an employer offers multiple reasons for the termination, there must be
a genuine dispute as to whether each proffered reason was pretextual, unless the
multiple reasons are especially intertwined or unless one of the reasons is especially
“fishy and suspicious.” Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784,
798 (7th Cir. 2015) (quoting Fischer v. Avanade, Inc., 519 F.3d 393, 403 (7th Cir.
2008)). The County argues that it had “at least eleven” reasons for terminating Ms.
Ponder, none of which were related to FMLA. Dkt. 114 at 3. Based on the County’s
cited facts, the eleven reasons appear to be the ten reasons articulated in Ms.
Paschal’s memo, plus the asserted fact that Ms. Paschal had lost faith in Ms.
Ponder’s ability to perform her duties. See id.; DSOF 26, 27. The following analysis
looks at each reason in turn.
1. Other department heads’ lack of trust in HR
Ms. Paschal wrote in the recommendation memo that other departments
didn’t trust HR because Ms. Ponder was inconsistent with response times and
because she could not be trusted to keep things confidential. PSOF 4; DSOF 36. Ms.
Paschal also testified that her predecessor, Ms. Haymaker, had told her that Ms.
Ponder was not viewed as a good employee. DRPSOF 6; Dkt. 99-2 at 20:10-11. Mr.
Haney testified in his deposition that Ms. Paschal had previously discussed this to
him only in the context of general staffing shortages and not limited to the HR
department—not as an issue with Ms. Ponder’s performance. PSOF 6.
The parties also dispute whether Ms. Paschal ever talked to Ms. Ponder
about these concerns. See PSOF 4; DRPSOF 4. Ms. Paschal testified in her
deposition that she told Ms. Ponder that the circuit court and clerk’s office didn’t
want to work with her because they lacked confidence in her, but that the sheriff’s
department merely told Ms. Ponder that they had their own HR people. Dkt. 99-2 at
48:9-24. Ms. Ponder testified in her deposition that she didn’t know which
department or officials would have expressed a lack of confidence in her to Ms.
Paschal because Ms. Paschal never talked to her about it. Dkt. 99-1 at 73:10-74:1.
As for not maintaining confidentiality, the County cites the same portions of Ms.
Paschal’s deposition testimony about a lack of confidence (without specific reference
to confidentiality) and deposition testimony from both Ms. Ponder and Ms. Paschal
about the handling of a confidential report. See DRPSOF 5. At most, the cited lines
of the deposition indicate that Ms. Ponder knew about the state’s attorney’s
investigation into her handling of that report, but there is no link between that and
other departments not trusting Ms. Ponder to maintain confidentiality.
Based on this evidence, determining whether the lack of trust from other
departments was a pretext involves weighing Ms. Paschal’s testimony against Mr.
Haney’s and Ms. Ponder’s. This reconciling of differing testimonies is the kind of job
left for a jury. See Liberty Lobby, 477 U.S. at 255. In addition, there is the added
layer of weighing the timing factor: Ms. Paschal testified that Ms. Ponder’s
performance had been an ongoing issue during Ms. Paschal’s entire time
supervising Ms. Ponder, but the parties dispute whether anything was said before
the recommendation memo. See PSOF 4; DRPSOF 4. Viewing the evidence in Ms.
Ponder’s favor, a reasonable jury could find that the lack of trust in HR was more
about broader staffing issues with the department and less about Ms. Ponder’s
individual performance—until it came time to write the recommendation memo
after Ms. Ponder started taking FMLA leave.
2. Implementation of compensation policies and tracking
The second item in the recommendation memo was that Ms. Ponder had
missed a deadline for a project to implement compensatory time policies and
tracking in the employee management system. See PSOF 7; DSOF 49. Ms. Ponder
testified in her deposition that she did not recall committing to having a review
completed and submitted by the deadline noted in the recommendation memo.
PSOF 7. In addition, she attributed any delay to the fact that she had been out on
FMLA leave. Id. The FMLA doesn’t protect an employee from bad performance, but
“it can require that performance standards be adjusted to avoid penalizing an
employee for being absent during FMLA-protected leave.” Pagel, 695 F.3d at 629.
Ms. Ponder wasn’t on FMLA leave at the time of the deadline, DSOF 52, but
viewing the evidence in light most favorable to Ms. Ponder, a reasonable jury could
find that Ms. Ponder’s FMLA leave could lead to a delay in completing work, and
that creates a genuine dispute as to whether this basis for termination was
pretextual. See Pagel, 695 F.3d at 629-30.
Ms. Ponder argues that timing is also relevant here. See Dkt. 111 at 13. Ms.
Paschal testified that the Finance Department had been waiting on this project
during her entire tenure at the County. DSOF 50. However, Mr. Haney testified
that Ms. Paschal never discussed this issue with him. PSOF 7. Drawing reasonable
inferences in Ms. Ponder’s favor, a jury could find that this was not a basis for
termination before the recommendation memo.
3. Compliance with OSHA training requirements
The next item in the recommendation memo was that HR had not ensured
compliance with OSHA training requirements. DSOF 47-48; PSOF 8. Ms. Ponder
asserts that the absence of an OSHA trainer caused the delay in OSHA training
and that she was not authorized to hire another trainer. PSOF 8-9. 6 The parties
dispute whether Ms. Paschal ever discussed this issue with Mr. Haney: Mr. Haney
testified that he did not recall Ms. Paschal discussing the issue when asked about
the recommendation memo, and he also testified that there were generally
discussions about terminations for every department based on the Baker Tilly
report. Dkt. 99-3 at 70:23-71:20, 78:20-79:2; see PSOF 9; DRPSOF 9.
Ms. Paschal didn’t discuss this specific issue with Ms. Ponder before the
release of the Baker Tilly report in May 2019, but they did discuss it after the
report was public. Dkt. 99-2 at 56:22-57:9; DSOF 47. This item was based on a
finding in the Baker Tilly report, the timing of which is analyzed later in this
opinion. But even though they did talk about the matter, Ms. Ponder asserts that
Ms. Paschal never indicated any urgency in hiring another OSHA trainer. PSOF 9.
Whether this issue was seen as a specific performance failing of Ms. Ponder or a
basis for her termination before Ms. Ponder started taking FMLA leave is again a
question of weighing different testimonies.
The County argues that Ms. Ponder’s failure to mention an OSHA trainer during her deposition
contradicts her declaration. See DRPSOF 8. The cited deposition testimony establishes that HR was
responsible for OSHA training, but Ms. Ponder’s declaration does not disclaim that responsibility in
saying that the County needed to hire an OSHA trainer. See Dkt. 109 ¶ 12.
4. Developing recruitment strategies
The fourth item was that HR had not developed successful recruitment
strategies for other departments and elected offices. PSOF 10. In particular, Ms.
Ponder’s adoption of expensive geofencing technology for recruitment had not
produced as many job candidates as the County was hoping for. Id.; DSOF 54-55. As
with other issues, Mr. Haney testified that Ms. Paschal had never framed issues
with geofencing and recruitment as an area of concern for Ms. Ponder’s
performance. PSOF 12.
Ms. Ponder asserts in her declaration that she had discussed with Ms.
Paschal that this was a newer technology that would take some time to work with
the vendor to get the results the County wanted. PSOF 11. The County argues that
this contradicts Ms. Ponder’s deposition testimony that she had never been
counseled about the project, DRPSOF 11, but the deposition testimony isn’t
inconsistent with her assertion that Ms. Paschal never presented the lack of success
with geofencing as a shortcoming with Ms. Ponder’s performance, see PSOF 11.
Also, Ms. Paschal testified that she had discussed the geofencing project’s failure
with Ms. Ponder. Dkt. 99-2 at 58:23-59:5; see DSOF 55.
Similar to earlier items, there is conflicting testimony around what
conversations transpired and what expectations were set before the failed
geofencing project became an indication of a failure to develop recruitment
strategies and became a basis for terminating Ms. Ponder. These conflicts present a
genuine dispute as to whether this item in the recommendation memo was an
honest reason for termination.
5. Updating and monitoring HR policies
The fifth item was that HR had not adequately monitored the development
and updates of its policies. DRPSOF 13; DSOF 37. As an example, the
recommendation memo referenced—ironically—Ms. Paschal revising a
discrimination and harassment policy for Ms. Ponder. DRPSOF 13; DSOF 37. Ms.
Paschal had informed Ms. Ponder in late 2017 that the policies needed to be
updated due to changes in Illinois law that would take effect on January 1, 2018.
See DSOF 38. Ms. Paschal reminded Ms. Ponder multiple times before drafting the
update herself in June 2018. DSOF 39.
Ms. Ponder disputes that this was an example of her “dropping the ball.” See
PSOF 14. Her understanding of Ms. Paschal drafting a revised discrimination and
harassment policy was that it was because Ms. Paschal was aware of the staffing
shortage in the HR department. Id. The County claims this contradicts Ms. Ponder’s
deposition testimony, in which Ms. Ponder merely testified that she did not recall
being tasked with updating the policies or whether she did update them. Dkt. 99-1
at 81:4-9. It’s plausible that she forgot during her deposition, but then remembered
later; determining the credibility of Ms. Ponder’s statements is a function for a jury.
In addition, Mr. Haney testified that this issue was never a reason for termination.
PSOF 15. Again, determining whether this reason for termination was pretextual
requires weighing competing testimonies, making it a genuine dispute.
6. 2018 internship program
The sixth item in the memo states that Ms. Ponder failed to use the funding
allocated in 2018 for an internship program, despite other departments requesting
interns. DSOF 57; PSOF 16. The parties dispute why no interns were hired, 7 but
the more relevant evidence for the pretext question is about how this was viewed (if
at all) in the context of Ms. Ponder’s performance. Mr. Haney testified that he and
Ms. Paschal never discussed this issue. PSOF 18. In fact, he thought it was an
“absurd” and “embarrassing thing to have in a termination letter.” Id.; Dkt. 111 at
13. He also asserted that this was a new requirement put on Ms. Ponder after the
fact, PSOF 18, but the County argues that this fell under Ms. Ponder’s
responsibility of developing and managing recruitment programs, DRPSOF 18
(citing the job description for HR director). Ms. Ponder asserts that Ms. Paschal
never discussed the issue with her and never indicated that it was a performance
issue. PSOF 17. Ms. Ponder also argues that the timing of this is suspicious because
it had been a year since the incident. Dkt. 111 at 13. Viewing all the testimony in
Ms. Ponder’s favor, a reasonable jury could find that the internship program wasn’t
seen as a reason for termination until Ms. Ponder started taking FMLA leave.
7. Online employee training platform
The next item states that Ms. Ponder failed to implement an online employee
training platform that the County had budgeted funds for in 2018. DSOF 59-60;
PSOF 19. HR began working on the project in March 2018. DSOF 60. Based on
conversations between Ms. Paschal and the vendor in July 2019, HR allegedly
delayed the project by not providing the necessary information to the vendor
Ms. Paschal’s understanding was that there was never a job posting for an internship. DSOF 57.
Ms. Ponder delegated the task to someone else in her office so she did not remember any specifics
during her deposition. DSOF 58. In her declaration, Ms. Ponder asserted that there had been no
qualified candidates when other departments requested interns. PSOF 17.
providing the training platform. See PSOF 19; DSOF 61. Sometime after, on July
11, 2019, Ms. Ponder sent a memorandum on the status of the training project, in
which she detailed how staffing shortages and other circumstances had caused
delays. DSOF 62-63.
Ms. Paschal testified that the project needed to be completed by the end of
the 2019 fiscal year. DSOF 66. Ms. Ponder asserts that it wasn’t until July 9, 2019,
that Ms. Paschal asked to prioritize this project. PSOF 20. Even though the project
started in March 2018, there was no issue until after Ms. Ponder started exercising
her FMLA rights. See Dkt. 111 at 13. And like with the other items, Ms. Ponder
testifies that Ms. Paschal never talked to her about this issue as being a problem
with her performance. PSOF 20. Likewise, Mr. Haney testified that the delays were
just delays—not some “elevated issue.” PSOF 21. Whether this reason for
termination was pretextual depends on assessing the credibility of Ms. Ponder and
Mr. Haney, which is a job for a jury.
8. FOIA request
The eighth item in the recommendation memo states that Ms. Ponder’s lack
of a timely response to a FOIA request resulted in a lawsuit against the County.
PSOF 22; DSOF 40, 42. The parties dispute whether the requested documents
existed and how that led to the delayed response. See DSOF 41; PSOF 23. 8 But
In responding to PSOF 23, the County is correct in its observation that Ms. Ponder’s deposition
testimony doesn’t cover whether the requested documents existed at the time of the request (but in
the wrong format), but the cited deposition testimony is Ms. Ponder being asked to confirm an
exhibit that recounted the chronology of the FOIA request and lawsuit. See DRPSOF 23; Dkt. 99-1 at
88:18-89:20; Dkt. 115-1. That doesn’t present a direct contradiction with Ms. Ponder’s declaration.
again, the relevant evidence is the evidence that sheds light on whether the County
honestly believed this to be a reason to terminate Ms. Ponder. Similar to some of
the above reasons in the recommendation memo, Mr. Haney testified that this item
was “absurd” and that Ms. Paschal had never discussed this issue before Ms.
Ponder’s termination. PSOF 25; Dkt. 111 at 13.
9. Missed deadlines
The ninth item states that Ms. Ponder missed deadlines on a regular basis.
PSOF 26. Ms. Paschal testified that this was an issue throughout her time as Ms.
Ponder’s supervisor. DSOF 35. Ms. Ponder argues that the timing is suspicious.
Dkt. 111 at 13. She asserted that Ms. Paschal understood that this was the result of
staffing shortages and never indicated concern with Ms. Ponder’s performance in
meeting deadlines. PSOF 26. However, Ms. Paschal testified in her deposition that,
although she never explicitly told Ms. Ponder that she had an overall problem of
getting things done on time, Ms. Paschal believed that she sent that message by
repeatedly asking her for the same things. DRPSOF 26; Dkt. 99-2 at 22:4-15.
According to Ms. Paschal, an intelligent professional employee would have
understood that something was wrong because of those repeated requests. Dkt. 99-2
at 22:17-23:7. Mr. Haney testified that waiting on a task to be completed might
have been discussed as a status update, but never as a basis for terminating Ms.
Ponder. PSOF 27.
There’s the similar competing testimony of whether this was viewed as an
issue worthy of termination before Ms. Ponder began taking FMLA leave. Unlike
some of the other items in the recommendation memo, this item is supported by Ms.
Paschal’s testimony that she “sent the message” to Ms. Ponder, DRPSOF 26, but a
jury is still needed to determine whether that was enough to indicate to Ms. Ponder
that she could be terminated and whether it negates Ms. Haney’s testimony.
10. Sexual harassment investigation and report
The last item in the recommendation memo states that Ms. Ponder
incorrectly started a sexual harassment investigation based on a complaint that
alleged no sexual conduct and that Ms. Ponder mishandled the confidential report
from the investigation. See PSOF 28. The nature of the harassment and whether
the report was properly secure, which the parties dispute, see PSOF 29-30; DRPSOF
30, seems beyond the purview of the Court because it’s more about the evaluation of
Ms. Ponder’s job performance. See Harden, 799 F.3d at 864.
There’s no evidence unique to this reason to raise a genuine dispute as to
whether it was pretextual, but the issue of confidentiality is also part of the first
reason in the recommendation memo—the County argues that Ms. Ponder should
have known there were concerns about her ability to keep things confidential
because of the state attorney’s investigation into her handling of the report. See
supra; DRPSOF 5. Because of the intertwined nature of these reasons in the
recommendation memo, the evidence showing that nobody had talked to Ms. Ponder
about confidentiality issues applies to this part too. See Fischer, 519 F.3d at 408.
11. Ms. Paschal’s lack of faith and the Baker Tilly report
Finally, the County cites Ms. Paschal’s lack of faith in Ms. Ponder’s abilities
as one of the eleven reasons for the termination. See Dkt. 114 at 3. In the deposition
testimony cited for this asserted fact, Ms. Paschal testified that Ms. Ponder “was
not functioning adequately to oversee the department” and that the Baker Tilly
report had surfaced some issues. Dkt. 99-2 at 35:16-36:2. The parties dispute how
Ms. Paschal and Mr. Haney responded to the report’s findings, see PRDSOF 46;
viewed in Ms. Ponder’s favor, there was some discussion about the HR Director
position, but no decision to replace Ms. Ponder. Id.
Ms. Ponder asserts that the first time she felt that Ms. Paschal had any
serious concerns about her job performance was when they met after the Baker
Tilly report was released. PSOF 31. However, Ms. Ponder’s impression at the end of
that meeting was that they would put together a plan for addressing the issues
raised by the report, and not that Ms. Paschal was considering any kind of
employment action against Ms. Ponder. Id.
Ms. Ponder also argues that the timing of the report’s release was suspect
because Ms. Paschal didn’t act on any of the issues in the report until after Ms.
Ponder returned from her first FMLA leave. See Dkt. 111 at 13-14. The County
argues that Mr. Haney was responsible for the delay, not Ms. Paschal. See Dkt. 114
at 6. There is some support in the record that Mr. Haney was the cause, but there is
no explanation behind the delay. See Dkt. 98 at 8; Dkt. 99-3 at 57:15-17; DRPSOF 9.
The County’s argument seems to imply that Mr. Haney didn’t want the report
released until May 2019, but that is not supported by the record. 9 Then again,
Although Ms. Paschal testified that Mr. Haney told her not to release the report, DRPSOF 9, Mr.
Haney’s testimony is less certain. Tracing the County’s citation in its brief leads to Mr. Haney’s
deposition testimony that “there was a realization [the report] was never shared with the Board.”
Dkt. 99-3 at 57:16-17. But Mr. Haney also testified that he didn’t know why the report was held for
so long. Dkt. 99-3 at 57:20-58:16, 59:2-20 (“But in all honesty, I don’t know why it wasn’t shared
although there was a delay, that doesn’t negate the possibility of Ms. Paschal acting
earlier on some of the deficiencies identified, without revealing the specific findings
of the report. See Dkt. 111 at 14.
Because the facts must be construed in Ms. Ponder’s favor at this stage, see
Rickher, 535 F.3d at 664, a reasonable jury could find that the Baker Tilly report
wasn’t a reason for terminating Ms. Ponder, even if it did raise concerns about the
way she ran her department. The more general lack of faith from Ms. Paschal,
which is also intertwined with many of the reasons in the recommendation memo,
lacks support in the record as a reason for termination that existed before Ms.
Ponder started taking FMLA leave (even if Ms. Paschal had concerns before).
C. Other Reasons for Termination
Although it maintains that Ms. Ponder’s unsatisfactory job performance was
the sole reason for her termination, the County also references two other possible
reasons for Ms. Ponder’s termination that were raised in Ms. Ponder’s and Mr.
Haney’s depositions. See Dkt. 98 at 11; Dkt. 114 at 4-5. The Court will set aside the
propriety of counsel—as opposed to the employer—articulating a purported
legitimate basis for discharge. See Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 56 (1st Cir. 2000) (finding pretext shown by after-the-fact
justifications provided following the filing of the action). Neither eliminates the
possibility that a reasonable jury could find that the County retaliated against Ms.
Ponder for exercising her FMLA rights.
1. The “larger political battle” at the County
The County notes that although Mr. Haney disagreed with Ms. Paschal’s
recommendation to terminate Ms. Ponder, Mr. Haney testified in his deposition
that he did not believe FMLA played any role in Ms. Ponder’s termination—rather,
the “larger political battle at the County” was the cause. Dkt. 114 at 4-5 (internal
quotations omitted). 10 Neither party offers any evidence (outside of Mr. Haney’s
testimony) to support or refute the alleged role of County politics in Ms. Ponder’s
termination. Determining the role of County politics comes down to how much
credibility and weight to give to Mr. Haney’s testimony, and that is a task left for a
jury. To the extent that the County offers this portion of Mr. Haney’s testimony to
question his credibility on the pretext question, see Dkt. 114 at 4-5, that is also an
argument to be made to a jury.
If County politics did play a role, that alone does not foreclose the possibility
of FMLA playing a role; to survive summary judgment, a reasonably jury needs only
to be able to conclude that FMLA was a substantial factor in Ms. Ponder’s
termination, not that it was the sole reason. See Goelzer, 604 F.3d at 995. Indeed,
Mr. Haney may be partially correct: Ms. Ponder’s termination was politically
motivated. But that doesn’t exclude that Ms. Ponder’s exercise of her FMLA rights
may have also been a motivating factor. To say that Mr. Haney’s assertion
undercuts Ms. Ponder’s pretext argument is logically no different than offering
some other nondiscriminatory reason for termination (such as substandard job
To be sure, people in the community may likewise hold this belief, but factual disputes are decided
by juries on evidence and rules of procedure.
performance). A statement from the employer that there was no discrimination or
that there was another reason for termination must still be examined. See Ortiz,
834 F.3d at 765 (stating that “factfinders must ask themselves what the admission
means” even with “the fabled employer who admits to firing an employee because of
race”). Mr. Haney’s testimony has evidentiary value in answering the pretext
question, see Kohls, 259 F.3d at 806, but it alone doesn’t conclusively determine why
Ms. Ponder was terminated.
2. Ms. Paschal’s harassment claim
The County claims that Ms. Ponder testified that FMLA had nothing to do
with her termination and instead provided an alternate, non-FMLA reason:
retaliation for Ms. Ponder providing information that adversely affected Ms.
Paschal’s harassment claim against Mr. Haney in May 2019. Dkt. 98 at 11; Dkt. 114
at 5; DSOF 31. However, this argument fails to undercut Ms. Ponder’s pretext
argument for a few reasons.
First, the factual record doesn’t support the County’s interpretation of Ms.
Ponder’s deposition testimony. PRDSOF 31. In the County’s cited portion of Ms.
Ponder’s deposition, Ms. Ponder testified that her relationship with Ms. Paschal
changed based on providing information to the investigator. Dkt. 99-1 at 64:1765:12. Then Ms. Ponder was asked about the relationship between Mr. Haney and
Ms. Paschal, which Ms. Ponder characterized as “[h]orrendous.” Id. at 65:13-18. The
next two questions asked about the deterioration of Mr. Haney and Ms. Paschal’s
relationship, to which Ms. Ponder answered that Ms. Paschal took power away from
Mr. Haney because he refused to recommend Ms. Ponder’s termination. Id. at 65:1929
66:6. This deposition testimony shows, according to Ms. Ponder, that her
relationship with Ms. Paschal devolved because of Ms. Ponder’s actions during the
investigation into Ms. Paschal’s harassment claim and that Mr. Haney’s
relationship with Ms. Paschal devolved because of their disagreement over Ms.
Ponder’s termination. There is no speculation about the cause of termination,
FMLA or otherwise. The lack of support from the cited evidence renders the factual
assertion null. Malec, 191 F.R.D. at 583.
The second and third reasons why the County’s argument fails mirror the
analysis above for Mr. Haney’s testimony about County politics. Neither party offers
any evidence to corroborate this alleged reason for termination, so whether Ms.
Paschal retaliated for the information Ms. Ponder provided in the investigation
becomes a question of how to consider Ms. Ponder’s testimony. And even if this did
factor into Ms. Paschal’s decision to terminate Ms. Ponder, that doesn’t necessarily
foreclose Ms. Ponder’s position. A reasonable jury could still find that the FMLA
leaves of absence were a substantial factor in her termination, and it would be up to
that jury to decide how to weigh the evidence.
Taking a step back and examining the evidence as a whole, the key question
is whether the evidence would permit a reasonable jury to conclude that Ms. Ponder
exercising her FMLA rights was a substantial factor in her termination. See Ortiz,
834 F.3d at 765; Goelzer, 604 F.3d at 995. The County argues that Ms. Ponder was
terminated because of her lackluster job performance, with Ms. Paschal’s
recommendation memo serving as the primary source to describe Ms. Ponder’s
shortcomings. Ms. Ponder argues that this was pretextual, asserting that Ms.
Paschal covering for Ms. Ponder during her absence shows a motive for retaliation
and that the timing of her termination is suspicious. See Dkt. 111 at 13.
The recommendation memo was issued five days after the approval of Ms.
Ponder’s second FMLA request and two months after Ms. Ponder returned from her
first FMLA leave. The five days may be short enough to infer retaliation, see
Loudermilk, 636 F.3d at 315, but the timing of events in this case also goes to
determining pretext. See Riley, 909 F.3d at 188-89. Although the recommendation
memo detailed many failings that preceded Ms. Ponder exercising her FMLA rights,
for nine of them, there is competing testimony as to whether those were concerns
specifically about Ms. Ponder’s performance and seen as bases for termination
before Ms. Ponder’s leaves of absence. And many of the reasons revolving around
Ms. Ponder’s purported inability to meet deadlines or keep things confidential are
so intertwined that the exercise of evaluating those reasons in isolation is
unnecessary. See Fischer, 519 F.3d at 408.
The lack of communication between Ms. Paschal and Mr. Haney in particular
raises questions of whether Ms. Paschal followed the normal practice of dealing
with an underperforming employee. The only evidence of what was normal practice
is Mr. Haney’s testimony that Ms. Paschal should have issued writeups or
performance improvement plans to give Ms. Ponder an opportunity to improve first.
PSOF 35; Dkt. 111 at 14. Sorting out whether Ms. Paschal should have done so and
whether she did requires a jury to weigh the competing testimony.
The County also argues that Ms. Paschal did bring Ms. Ponder’s performance
issues to Mr. Haney’s attention before March 2019. Dkt. 114 at 6, 9. Mr. Haney
testified that Ms. Paschal did so during discussions of gaps in multiple departments
that included HR. Dkt. 99-3 at 36:22-37:13; see DRPSOF 34. But when asked about
the specific incidents listed in the recommendation memo, he testified that they had
not been brought to him as reasons to terminate Ms. Ponder. If Ms. Paschal did talk
to Mr. Haney about these issues in terms of potentially terminating Ms. Ponder,
that could rebut Ms. Ponder’s pretext argument, but it requires a jury to decide how
much credibility to assign to each person’s testimony.
All the evidence, viewed in light most favorable to Ms. Ponder, could lead a
reasonable jury to conclude that Ms. Ponder was terminated for exercising her
FMLA rights. And that isn’t necessarily negated just because the recommendation
memo didn’t mention Ms. Ponder’s FMLA leave, see Dkt. 98 at 9, or because Mr.
Haney testified that FMLA played no role, see Dkt. 114 at 4-5. It is up to a jury to
weigh that against the other evidence.
The undisputed facts in this case show that declarants testified to various
statements, but the parties dispute whether many of those statements are true.
Consequently, resolving the FMLA retaliation claim in this case requires weighing
competing testimony and determining the credibility of the declarants. This is a job
for a jury, and the Court finds that, based on the factual record in this case, a
reasonable jury could find in favor of Ms. Ponder. The County’s motion for summary
judgment is denied.
The parties should consult with each other to decide whether they would like
to schedule a settlement conference with Magistrate Judge Jensen or whether they
would like to prepare a final pretrial order. By November 21, 2023, counsel should
file a notice with the Court as to how they would like to proceed.
Date: November 13, 2023
Honorable Iain D. Johnston
United States District Judge
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